## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

__________

_________________ No. 02

- 22

- 00099

- CR

___________

________________

On Appeal fro m the 415th District Court Parker County, Texas Trial Court No. CR21

- 0 434

Before Womack and Wallach, JJ

. ; and Lee Gabriel (Senior Justice, Retired,

Sitting by Assignm ent) M emorandum Opinion by Justice Ga briel 

### M ICHAEL 

### R

AY 

### C ARTMILL 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
A jury convicted Micha el Ray Cartmill of aggravated assault with a dea dly
weapon
. See Tex

. Pen al C ode A nn. § 22.02 (a)(2). Cartmill pled true to two punishment enhancement paragr aphs contained in the indictm ent
. T he jury found
the enhancements to be true and as sessed hi s punishment at 55 years ’ confinement in
the Institutional Di

vision of the Texa s De partment of Criminal Justice. See
id

. § 12.42(d). I n his sole issue, Cartmill contends that th e trial cour t erred in overruling his ob j e ction t o the inclusion of the definition of rec k les s and the reckless
mens rea in the definition of a ssault when t he i ndictment alleged only a knowing or
intentional act. H e argues that he was harmed b y the ruling beca use this err or al lowed the jury to convi ct on a s tate of mind not alleged in the indictment . We affirm.
I. BACKGROUND 1
On April 25, 2021, Dav

id Marti nez Galin do was travel ing with his family in his Dodge truc k from his home in We atherford to Fort Worth. Gali nd o was driving wit h his wife, Elsie , in the fron t seat and his daughters and brother in the back seat
. Before entering onto the service road to I nterstat e 20, Galindo was driving near a C hick

- Fi l

A , when a J a g

u ar automobile ran a stop s ign and almos t c rashed into Galindo ’ s t ruck. After Galindo escaped the first potential collision, the J aguar continued to move in

1 Cartmill d oe s not challenge the suf ficiency of t he State ’ s evidence aga in st him ; therefor e, w e will dis pense with a le ng thy recitation of the factual backg round and
c on f ine our discu ssion of the fac ts only as nee ded for context and to r es olve the iss ue raised.3

front of Galindo ’ s truck m ultiple times to cut him off as the two ve hicles proceed ed

on t h e service road

. G alindo repeat ed ly took evasive action to avoid hitting the J aguar. Once the two vehicles were traveling on I nterstate 20, the J aguar pulle d in to the left lan e directly beside Gali ndo ’ s truck

. Wh ile t r a veling in that mann er, Gal indo ’ s six

- ye ar

- old daughter told him that “ someone was pointing at [them]

. ” At that point,
Galindo was able to see that there were two people in the fron t seat of the J aguar. Galindo described the driver as a man wi th b l a c k hair, a beard , and wearin g a CO VID

- typ e face mask. Galindo described the pas senger as bald with tat t oos on his
face. Ga lindo identified Cartmill as the passenger of the J aguar. Gali ndo explained
that as the two cars were tr aveling si d e

- by

- side , Cartmill pointed a gun out his open wi ndow at Galindo and then Cartmill put the gun to his lip s “ like for me was, like, to be quiet, like shut up and leave. ” After Cartmill pointed the gun and put it to his lips,
Galindo told h i s wif

e t o call 9 11 and tak e a pi ctu re of the li ce nse plate. She did so
while Galindo continued to follow the car until the J aguar took an exit towards a Val ero g as station. Galindo continued on to his destinatio n . After r ecei vin g a p h one call from th e police, Galindo and his fa mily returned to the gas station to talk to the police.
Galindo ’ s brother, Uriel Martinez Ga lindo (Uriel) , was in the back seat by the
driver ’ s side window when these events occurr e d. At t r i al, Uriel described th e events as he recalled them , saying tha t the two people in the J aguar were both in the front4

seats of the vehicle. Uriel ’ s only recollecti on of the driver was that he wore a
COVID

- type mas k. H e describe d the passe nger as b ald with tat t oos on h is face and
was able to make a courtroom identific ation of Cartmill as the passenger in the J a guar. Uriel testified that Cartmill had the gun and , while he did not see the gun pointe d at the t ruck and i t s occupants, he di d see a nd demo nstrate how Cartmill put the gun to his lips. Uriel conside r ed thi s a ct to be a threat.
Elsie also testified about the events on I nterstate 20. Elise stated , “ He dr e w the gun o ut at my husb and, [Galindo]

. ” When asked , “ Who is ‘ he ? ’ ” El sie i dentified
Cartmill. Elsie related that the person with the gun was th e passenger , and she stated
that she remembered the tat t oos on his fac e . She further r elated ho w Cartmill pointed th e gun at her husband and then put it t o his lips a s i f “ he was trying to shut [ Galindo ] up. ” Elsie described how scared she was and how sh e was shaki ng while taking the photo of the license plate and calling 9 11.
S ergea nt Rick Reese of the Hudson Oaks Police D e partment res ponded to the dispatch that resulted from Elsie ’ s 911 cal l

. He went to the Valero gas station to investigate a report ed road

- rag e incident involving a gun. W h e n he arrived at th e station , Reese found the car t hat he was loo king for at t he gas pump s and saw Cartmill pumping gas into it

. When initially questioned, Cartmill acknowledged that
there was an incident on Inter st a te 20 bu t denied t h at a gun was inv olved

. Ree se testified that he patted down Cartmill for officer safety and did not find a gun on hi m . Rees e asked Cartmill if there were any guns in the car , and Cartmill responded that5

ther e was not a gun in t h e car . R eese re quested backup and Officer Roden arrived to
assist. W h en ask ed by Reese if he could search the car, C artmill said the car was not his but belonged to a person who was in the Valero st ore. 2 At this point, Reese asked
Roden to “ do a Terry frisk o f t he vehi cle. ” Reese stated th at Roden foun d a gu n in
the center console of the car. After the gun was found, Cartmill reversed course in his conversation with
Reese and state d tha t the driver ha d show n the gun to the Hispanic man i n the othe r vehicl e and that he had leaned b ac k in the pass enger se at to allow that to happen

. Cartmill described how the driver put the gun to his own l ips as if to say “ shh ” or

“ back up. ” Cartmill con t ende d he never had the gun in his possession. He state d that
the dri ver put t he gun in the cen te r console whe n the encounter ended. Based on
Gal indo ’ s and Elsie ’ s description s of the person holding and poin t ing the gun , Cartmill was a r re sted.
Ca rtmill was indict ed for aggr ava ted assault w ith a d eadly weapon. The
indictm e nt alleged the offense as follows :

2 The driver of the ve hi c le was Jason Eli Langl ey. Acco rd ing to Cartmill, Langley wa s i n the gas statio n wh i le Ca rtmill was pumping the gas

. Reese and Roden desc ribed seeing a person mat ch ing the driver ’ s description w al k around the bui lding
o f the station , and other officers wer e broug ht in to search for him

. They did not fin d L angley

.6 M ICHAEL RAY CARTMILL hereinafter styled Defendant, on or about the 25 th day o f April , 2021, and before t h e presentment of this indi c tm ent, in t he County and State aforesa i d , [did] then an d there inten tionally or know i ng ly threaten El sie Munoz or David Martinez with imminent bodily injury by pointing a hand gun at them and di d then and th e re use or exhibit a dea d ly weapon , namely: a handgun, d u r i ng the c ommission of the assault[ .]
Afte r both sides rested and closed in t he g uilt

- or

- innocence phase of the t rial , the trial court held a charge conference. The se c ond paragraph of the prop osed charge of the court contained the following: A person commits a n assaul t i f th e p erson in tentionally , knowingly, or recklessly c auses bo dily i njury to another or threatens another with imminent bodily injury. [Emphasis added.] The last paragraph on page one of the proposed charge read as
follows: A person acts recklessly , or is r e c k less, wi th respect to the result of his conduct when h e is aware of but consciously disregards a substantial and unjust ifiable risk that the resu lt will occur. The risk must be of suc h a nature and degree that its disregard constitutes a gross dev iat io n f rom th e standard of care that an ordinary person woul d e xer cise under all the circumstances , as viewed from the actor ’ s standpoint.
T h e proposed c harge also contained the following application paragraph: Now, if you find from the evi den ce b e yond a r easonable doubt that on or about the 25 th day of April , 2 02 1, in Parker County, Texas, the defendant, Michael Ray Cartmill, did then and th e re intentionally or knowingly threaten El sie Munoz or David Mart inez with imminent bodily injury by poi nt

i n g a han dg

un at them and did then and there use or exhibit a deadl y w eap on, namely: a handgun, during the commission7

of the assault, then you will fi n d the defendant guilty a s charged in the indictment. At the charge conference , Cartmill o b j e cte d to the definition of assault contained in the second paragraph on page on e b ecau se it included the mental s t ate of
recklessness , w hich was not alleged i n the indictment. Defense counsel also objected
to the last paragraph on page one b eca us e it defined recklessly , and counsel argued the
trial co urt should not “ i nstruct the jur y o n a le gal theory that they cannot convict on. ”
The trial c ou rt overruled defense counsel ’ s objections and submitted the jury charge

w ith the recklessness langua ge in tact
. The jury found Cartmill guilty of aggravated assault with a deadly weapon.
Ca r tm ill pl ed true to the two punishment enhancement paragraphs contained in the
indictment. T h e jury f

ound the enhancement paragrap h s t o b e tr u e and assessed
Cartmill ’ s punishment a t 55 years ’ confinement in the Institutional D i vision of the
Te xas Departme n t of Crim inal Jus tice. T he trial judge sentenced Cartmill accordingly and he appeale d

. II. JURY CHARGE ERROR
In his s o le issue, Cartmill contends , “ T he T rial C ourt E rre d in A llowing the J ury to C onvict [

him] of A ggravated A ssault under a N on

- indicted T he o ry of
R ecklessness. ” Cartmill ’ s counsel objected to the inclu sio n of the mens rea of
reckles s ness in the definiti o n of assault and the definition of reckless in t h e abstract language of the charg e . T he trial court overruled those objections. In revi e wi n g a8

jury

- charge issue, an appellate court ’ s firs t d u ty is to determine whether th e charge
contains e r ror. Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App

. 1996) , overrule d i n part on other grounds by Gelinas v. State , 3 98 S.W. 3d 70 3 , 706

– 08 (Tex. C ri m . App. 2013 )

.

“ A jury charge m ay not a uthorize the conviction of the defendant on a theory permitted by th e jury charge but not alleged in the indictmen t. ” Gore v. State , 332 S.W.3d 66 9 , 673 (Tex. App.

— E astland 2010, no pet.)

. T he State concedes tha t

t he trial court ’ s ruling s o n the obj ec tions made by defense counsel to the charge w ere

erro neous and , thus , that th e inclu sion of the cul pable menta l state of reckless in the
defi nition of assault and the inclusion of the definition o f reckless w as in er r or . We
hold that there was error i n instru c ting the jury on the provisions concerning an uncharge d m ental state in th e abstract portion of the charge

. See Ha ll v. Sta te , 145 S.W.3d 754 , 759 (Tex. App

. — Texarkana 2004, no pet.)

. Havin g agreed with both Ca r tm ill and th e S tate that the tr ia l court erred, we must now analyze that error for harm. Since Ca rtmill properly ob je cted to the charge,

an error cau sin g some ha rm requires rev ersal. Tex. Code Crim. Proc. Ann. art. 36.19; Almanza v. State , 686 S.W .2d 15 7 , 171 (Tex. C rim . App. 1985) (o p. on reh ’ g ) ; see Abdnor v. State , 871 S.W.2d 726, 732 (Tex. C rim. App. 1994); Calvert v. S tate , No. 02

- 18

- 00341

- CR, 2020 W L 524174 4 , at * 21 (Tex. App.

— Fort Worth Sept

. 3, 2020, pet.
ref ’ d) (mem. op., not designated for publ i ca tion)

. When assessing whet her t her e is
harm , we weigh four factors: (1) t he entire jury charge ; (2) the state of the evidenc e;9

(3) the jury argu ments; and (4) a ll other relevant in forma tion in the record

. Campbell v.
St ate , 6 64 S.W.3d 240 , 245 (Te x . C r im

. App. 2022 )

. A. Examination of Factors
1. The e ntire j ury c harge
The i nd ictment alleged Cartmill committed agg ravated assault with a deadly

wea pon intention al ly or knowingl y. The in dictmen t did not all ege a reckless mens re a. Neith er the State n or C ar tmill requested a lesser included o ffense that might require
in clusion o f a reckless mens rea. The application paragraph contained in the court ’ s charge read:
No w, if you find from th e evidenc e be yond a reason able doubt that on or about the 25 th day of A pr il , 2021, in Parker County , Texas, the defendant, Michael Ray C ar tmill, did then and the re intentionally or knowingly threaten El sie Munoz or David Mart inez wi th immi nent bodi ly injur y by poin t

i ng a handgun at them and did then and there use or exhibit a d eadly weapon, namely: a ha ndgun, during the commission of the a ss ault, then you will fin d the defendan t guilty as charged in the indictment.
Cartmill did not ob ject t o the application paragrap h.
The application paragr aph here contains only the men t al st ates alleged in the
indictment

— intentionally a nd knowing ly. I n the paragraph that applies the law to the
fa cts, t he jury members w ere instructed they could only con vic t if they fou nd beyond

a reasonab le doubt that Cartmill inten tionally or kno wi ngly co m mi tted the offense of aggravated assault with a deadly we apon as alleged in th e indictment. We find that there was no error in the application paragraph of the jury c har ge .10

We p re sume the ju ry followed the trial court ’ s charge. See Th rift v. State , 17 6 S .W.3d 221, 224 (Tex. Crim. App. 2005); Luqu is v. State , 72 S.W.3d 355, 366 ( T ex. Crim. App. 2002). Cartmill has not referred us to any evidence in the rec ord to
suppor t a n argumen t that the jury did not deliberate and did not de cide his case based

on t h e instructions contained in the charge as a wh ole.
In Plata v. State , th e Court of Criminal A ppeals discussed the difference
b etween the abstract portions and the applica t i on parag rap h of the court ’ s charge and
how the two are in t e nded to relate

. 926 S.W

. 2d 300, 302 (Tex. Crim. App. 1996) , overruled i n part on other grounds by Malik v. State , 953 S.W. 2d 234, 239 (Tex. Crim. App.
1997 )

. In Plat

a , the c ourt explained tha t “ abstract or definitional paragraphs serve as a
ki n d of glossary to help the jury und e rs tand the me an ing of co nce pts and te rms used
in the application paragraphs of the ch arge. ” Id

. Jurors are authorized only to return a verdict u nder the conditions given by the application paragraph of the court ’ s charge. Id

. “ T he inclusion of a merel y s uperfluous a b s traction , th erefore, never produces reversible error in the court ’ s charge because it has no effect on the jury ’ s ability fairl y and a ccurately to implement the commands o f the application paragraph or paragraphs

. ” Id

. at 302

– 03

. The term r eckless wa s not incorpora t e d in to t he ap plication paragraph and is not an independent ba sis for convicting Cartmill. See Williams v. Stat e , 226 S.W.3d 611 , 618 (Tex. App.

— Houston [1 st Dist.] 2007 , no pet.) ( holding that w hen the application pa ragraph co r rectly inst ructs the jury, a superfl uous abstract definition is11

not err o r ) ; see also Li

ving ston v. State , No. 14

- 06

- 01031

- C R, 2008 WL 2262033 , at *5 (Te x . App.

— Houston [14 th Dist.] May 29, 2008 , pet. ref ’ d) (mem. op., not designated for publication) ( s a me

) ; Edwards v. St

ate , 228 S.W.3d 450, 453 (Tex. App.

— Amarillo
2007 , pet. ref

’ d) ( sam e)

. Co nside r

ing the jury charge a s a whole, this factor w ei g hs against a finding of harm.

2. State of the e vid ence and the jury a rgument s W e consider the state of the evid e nce to determine whether the ev i dence mad e it more or less likely that the jur y charge cau sed C artmill some harm. See Ca mpbel l , 6 64
S.W.3d at 245

. Cartmill ’ s coun sel summed up during his opening statement what he
believed would be t h e pivotal dispute th a t would be raised by the evi dence : “ Th is c ase may turn ou t to be rather simple for you . You ’ re going to need t o determine who displayed a firearm in the window. ” Car tmil l , who began claiming that the dr iver was the one who displa y ed the weapon in his se c ond story t o the police at the V alero
stati on , main tained tha t positi on at trial

. T he testimony in this trial as a whole
revolved primarily a round the identity of the p er son wh o di spl ayed the weapon and

not whethe r Cartmill acted intentionally, knowingly , or reckless l y. We can look at Cart mill ’ s clo si ng argument to assist in analyzing the relevant

e vidence. Ca r tmill argued that the evidence raised a varie ty of diffe rent theor ies the jury could rely upon to acquit him . First, it was argued that the evi d enc e showed that
the driver displayed the gun w hi le Cartmill simply leaned ba ck in his seat

. The theory12

was that Galindo and his wif e mis identified C artmill

. 3 Second, Cartmill ’ s counsel argued that there was no evidence to support th e allegat ion in th e i ndictm ent that the
gun w as pointed at either Ga l i ndo or Elsie

. Th is ar gument centered on the description Galindo and Elsie gave on how the person in the J aguar put the gun to his lips. 4 Third, Cartmill ’ s counsel argued t hat the e vidence d id not prove th a t Galindo
felt threa tened by the gun bein g poin te d at him and his wife. 5 Fourth, Cartmill ’ s counsel asserted that al t hough the indictment alleged Cartmill used a handgun , no one used the term handgun in describing th e event. 6 Finally, Cartmil l ’ s cou nsel told the jury members that the court ’ s ch arge instr u c ted them that they could “ throw out

e vidence ” if they belie v ed it was illegal l y obtained

. His argument was based on the search of the vehicle that produc ed the gun used in the offense.
The eviden ce i t self centere d on whether Cartmill ’ s s tory that the dr iver displayed the handgun was tru e or whether the testimony of Galindo, Elsie , and
Urie l

–– that Ca rtmill pointed the handgun , thereby threa tening Gal indo and Elsie

––

3 Both Galindo a nd Elsie identified Cartmill as th e person poi nting the gun

–– to the police on the day of the offense and at trial.

4 E lsie testified that “ [Cartmill] got his

– the gun o u t, pointed [it] at [Galind o ] , and he pu t it on his lip

. ” Ga lindo w as a ske d , “ S o he pointed [the gun] towards you ? ” Galindo a ns w ered , “ Yes. ”

5 Galindo testified that when this occurred, “ I was thinking about my family, but I told my wife

– and I t o ld my wife to ca ll th e police. ”

6 When Elsie was asked i f she knew what a h an dg un is , she responded , “ It was a sma ll g un. He had it in his hand. ”13

w as accur ate. There was no direc t or cros s

- examination testimony suggesting th at the

act io ns taken with the gun were committe d reckless ly instead of intentionally or knowingly.
In his summation of the evide nce , Cartmill did not raise an y issue concernin g his mental state

. N eithe r coun sel u sed the word reckless or referred in an y way to t he objectionable portions o f the court ’ s charge in closing arguments. T hese factors weigh agains t a finding o f harm.
3. All other r elevant evidence
Cartmill did not re fer to other relevant evidence in the record on this issue , nor have w e f ou nd any. T he State, however, has po inted t o Cartmill ’ s reference to the
prosecutor ’ s response to the objections i n question as something this co urt should
consider. When Cartmill objected to the i nclu sion of a reckles s mens rea in t he
definition of assau lt and the d efinition of reckless in the abstract portions of the charge, the State made a faulty legal response. The prosecutor told the trial court that
it wa s proper to put the objected

- to instructions in th e charge : “ [T] hose wou ld be the
definitions within the P enal Code, which is why we include the definition as opposed to editing it as we see fit

. . . . W e have no intention whatsoever of harping on the
word recklessly, referring to the word recklessly, o r inferri n g in any way, sh ape, or form to the ju ry that th ey hav e an ability to convict [ Cartmill] o f anything other than
intentional ly or knowingly. ” Cartmill contends that t he State ’ s response “ sp eaks to14

the intent of the prosecutor to intentionally add a m ental state not included in the
indictment. ”
Cart m il l ’ s assertion is s imply not supported by any relevant informati on revealed by the record of the trial as a whole. See Alm anza , 686 S. W .2d at 17 1. Th e mental state of the person exhibiting the gun was not a dispute r aised by the evidence
or argu m ent of c o u ns el. T h is factor weigh s agains t a finding o f harm.
B. Harm Analysis
Cartmill relies upon a single case to arg ue that the inclusion of a reference to
the mens rea of reckless in the abstract por ti on of th e court ’ s charge deprived him of

a fair t r ial. H e argues that this case is analogous to Reed v. State because the jury
instructions allowed him to be convicted for recklessly threaten ing El sie or Galindo with imminent bodily injury by pointing a hand gun a t them

. 1 1 7 S.W.3d 260 , 265 (Tex. Crim

. A pp. 200 3) . We d isagree. Reed is distinguisha ble from the present cas e in
the most significant manner. I n Reed , the application paragraph incl uded a m ental

state not alleged in the indictment

. Id

. The applicati o n paragra ph of the court ’ s charge inst ruc t ed the j ury that it could convict if it fou n d that the defendant

“ intentionally or knowingly or recklessly caused bodily injury ” when the in dictm ent only alleged intentional ly and knowingly. Id . at 261. As a res u lt, th e ju ry instructions expanded the ind i ctment a nd allowed the jury to find the appellant guilty for conduct not alleged in the indictment. Id.15

The application paragraph in t he prese nt case only inc luded the mental states alleged in the ind ictment

— in t entionall

y and knowingly. The court ’ s c h ar ge did n ot improperly broaden the indictment by including reckles sly in the application paragraph but in stead limited the jury to co nsider only the men tal states alleged in the
indictment. The extra me ns rea lan g uage in th e abstract definition s was me r e l y
super f l uous as it had no effect on the jury ’ s ability to implement the application paragraph. See Campb ell

, 66 4 S.W.3d at 254 ; Plata , 926 S.W.2d at 302

– 03 ; Pri ce v. State , No. 10

- 22

- 00047

- CR, 20 23 WL 4363066 , a t *3 (Tex. A pp
. — Waco J ul y 5, 2023 , no pet.) (mem. op., not designated for publication)

. The record reveals that while the trial court erred in including superfluo us instructions in the abstract portion of the charge , (1) the application para gr aph of the charge limite d the jury ’ s consideration to the mental state s alleged in the indictment ; (2) the State presented compelling evidence that Cartmill exhibited the gun the reby threatening Galindo and Elsie ; and (3) the parties focused their eviden ce and
argum e nts on who ac tually d is pl ayed the gun, not the mental state of th at person
. Accordingly , in view of the to tality of the record, we conclude Cartmill w a s not

a c t u a l l y harm e d b y the charge error. We overrule Cartmill ’ s sole issue.
III. CONC LUS ION
H av ing o verrule d Cartm ill ’ s sole i ssue, we affirm the trial court ’ s judgme n t.16 /s/ Lee Gabriel
Lee Gabriel Justice
Do Not Publish Tex. R. App. P . 4 7.2(b)
Delivered : August 10, 2023